Watson v Pittwater C

DATES OF HEARING: 21/04/2005 , 29/04/2005 and 24/08/2005 EX TEMPORE JUDGMENT DATE : 08/24/2005

APPLICANT Mr B. Hones, solicitor of Hones Lawyers

LEGAL REPRESENTATIVES: RESPONDENT Ms H. Irish, barrister instructed by Mr A. Stafford and Ms E. Deunow, solicitor of Malleson Stephen Jaques

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

11519 of 2004 Brian David Watson v Pittwater Council

JUDGMENT on costs for amended plans 1 This is a part-heard matter and the purpose of resuming today was to hear final submissions. However, the applicant now seeks to tender a vegetation management report/plan and this has implications for the subdivision and the landscape plan.

2 I note Ms Irish's comments that in Mr Wotherspoon's initial oral advice (the Court appointed expert in ecology) he flagged the need for such a plan, and this point was clearly made on the view as well. By not providing the vegetation management report until now the difficulty created is that the respondent should be given the opportunity to consider the new report and any amended plans. Clearly if this was provided earlier than today then it would have also been considered by the experts.

3 In the circumstances, I consider that it is fair and reasonable that the applicant pay part of the respondent's costs. The vegetation management plan with strategies for the wildlife corridor and bush regeneration is tantamount to amended plans and it also gives rise to an amended landscape plan.

4 This matter was originally set down for one day last week, 21 April, and as the matter was not completed it was adjourned to be completed today. Last week an extensive site inspection was carried out in the morning, before convening in Court that afternoon. The Court directed that the experts confer on the conditions and that task was undertaken the afternoon/evening of 21st. I was to hear final submissions today from the respondent's solicitor, Mr Hones, and from the council's barrister, Ms Irish. The applicant on further reflection commissioned a vegetation management plan to be prepared by his expert consultant, Dr Ambrose and this has been tendered today. 5 This plan no doubt goes to many of the requirements in the conditions and it has also thrown up amendments required for the building envelopes for the subject lots. As such an amended plan is to be considered in the proceedings and the adjoining owners are to be given the opportunity to comment on same. Therefore, and it is agreed by the parties, an adjournment is necessary for all these matters to be attended to. That is for the council to have the opportunity to appropriately respond to the vegetation plan and amended plan and for the Court appointed experts' advice to be sought.

6 Where amended plans are proposed it can appropriate that an applicant pay part of the respondents' costs in the proceedings.

7 I have been provided with an amended itemised schedule of costs. This relates to the time given to the formulation of the conditions superseded by the vegetation management plan and the consequential amendments to the plans and preparation of submissions. Solicitors costs of claimed in the sum of $1,824 plus Counsel's costs of $1,400 for preparation and appearing today. A total of $3,636. This amount does not include and it is not proposed to include the costs for the court appointed experts, Mr Wotherspoon and Ms Gordon as these costs are to be jointly shared and met between the parties.

8 The amount of $3,636 is determined as a reasonable reflection of the costs unnecessarily incurred to the making of the amendments and submission of the vegetation management plan. 9 Under the Act, Commissioners have the ability to award costs only with the concurrence of the Chief Judge. And as you are aware, Mr Hones, the applicant has 14 days in which to make a submission to the Chief Judge following my decision today on costs. Given the need to adjourn the proceedings to a future date this process will allow the Chief Judge to make a final determination on costs before the matter concludes.

10 It is noted that all the directions that have been handed up in the short minutes this morning are agreed to between the parties except for the issue of costs that I have now determined above.

11 Therefore the directions/orders of the Court this morning are: 1. Leave is granted for the applicant to rely on the amended landscape plan and vegetation management plan received with and referred to in letters from the applicant's solicitors to the respondent's solicitors dated 27 April 2005, subject to orders 2 and 3. 2. The resumed hearing date 29 April is vacated. 3. The applicant pay the respondents' costs in the sum of $3,636. 4. The Court further directs the applicant file and serve, including on the Court appointed experts, amended version of plans BW7/BW8 which conform with the amended landscape plan referred to in order 1 and any amended vegetation management plan by 2 May 2005. 5. The Court appointed expert flora and fauna, Mr Wotherspoon, comment on the amended landscape plan and vegetation management plan referred to in order 1 and direction 4 and suggest any consequential changes to the draft conditions in writing. 6. The Court appointed expert for planning, Ms Kerrie Gordon, comment on the amended building envelope shown in the landscape plan referred to in order 1 and suggest any consequential changes to the draft conditions in writing. 7. The applicant has complied with direction 4 above. Those objectors who gave evidence at the hearing be provided with an opportunity to inspect and comment on the amended landscape plan and vegetation plan referred to in order 1 and direction 4, and the amended versions of plans BW7/BW8 referred to in direction 4. 8. The proceedings are listed for callover before the Registrar on 4 May 2005 for the purpose of fixing a date on which the hearing is to resume. 9. The respondent file and serve any amended draft conditions on the applicant no later than fourteen days prior to the date fixed pursuant to direction 8. 10. The applicant file and serve any objections to the draft conditions not later than seven days prior to the date fixed pursuant to direction 8. 11. Liberty for the parties to restore the matter on forty-eight hours notice.

J S Murrell Commissioner of the Court ljr

Pursuant to s. 69(8) of the Land and Environment Court Act 1979, I concur in an order for costs for the applicant to pay the respondent's costs in the sum of $3,636.

R N Talbot Acting Chief Judge

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT 1 This is a judgment for an appeal under s 97 of the Environmental Planning and Assessment Act against the refusal by Pittwater Council of a development application for the property known as No. 26 Nareen Parade, North Narrabeen.

2 The subject site is some 1533 sq m and the proposal is to subdivide the lot into two lots with parking provision by way of three car parking spaces and an inclinator to the rear lot of the subject proposal. No vehicular access to the rear lot but a car parking space next to the two car parking spaces for the front allotment. The slope of the land is very steep in the general vicinity. It slopes very steeply from Nareen Parade and the front portion of the block has some 48% slope and the rear portion some 36%. Currently there is an existing dwelling on the subject land to be demolished and the development application is also for the subdivision and construction of off street car parking and and inclinator.

3 There are a number of objections to the proposal by local residents. The council provided a Statement of Issues that identifies the provisions of the relevant planning instruments that are in issue. In summary the statement of issues states that the lot width is less than the requirement of 16 m provided for in the DCP, the lot width being 15.2 m. The other particulars relate to the objectives of the DCP and the draft LEP 21 where the land is proposed as residential protection zone.

4 The subdivision controls are that the DCP provides for a 1200 sq m minimum and the proposed front lot is 552 sq m with 677 sq m total including the parking and access handle and the rear lot is 856 sq m which includes a 31 m portion at the front of the first lot.

5 Council raises the issue of streetscape and neighbourhood and the consistency with desired future character. In relation to the proposed car parking provision the proposed subdivision for two lots under council's DCP would require four car parking spaces and three are proposed.

6 The Court met on site with the parties and carried out an inspection of the area and had a detailed walk along Nareen Parade and also had the benefit of going into the property of the two resident objectors to the proposal.

7 The Court appointed expert, Ms Kerry Gordon, consultant town planner, provided a report to the proceedings. The Court also had the benefit of Mr Raven, the council's planning assessment officer. Mr Wotherspoon, the Court-appointed ecologist, also gave evidence to the Court and provided statements of evidence. Additional expert advice was in the form of a Vegetation Management Plan provided by Dr Ambrose and also engineering advice provided by Jack Hodgson Consultants Pty Limited.

8 I will just summarise for the record Ms Warburton's concerns about the proposed development. Ms Warburton owns No 24 Nareen Parade. She is concerned that the proposed development is not consistent with council's controls, that it will have an adverse impact in terms of the amenity of her dwelling house and open space areas. She raised noise and solar access concerns and the fact that the proposed development in her opinion would impact on the natural environment in terms of a habitat for wildlife. She was also concerned about the retention of vegetation, in particular the pepper tree that grows on her property and also the vegetation near the front boundary in the front of the property, in particular commonly referred to as a Chinese Lantern and a Cotoneaster.

9 In terms of the planning framework for the proposed development I must have regard to council's controls and the subject site is zoned Residential A under the Pittwater Local Environmental Plan 1993and Pt 3 division 1, refers to the subdivision of land. The aim of this clause is to create more varied allotment sizes, improve residential amenity and enhance the environment in relation to land to which this clause applies.

"A person shall not subdivide land within Zone 2(a) generally south of Mona Vale Road, Ingleside and Mona Vale unless each allotment with road frontage created by the subdivision will have an area of not less than 550 sq m within Zone 2(a) and each internal or hatchet shaped allotment created by the subdivision will have an area of not less than 660 sq m exclusive of any access corridor and the whole of the allotment will be within the Zone 2(a)."

11 The controls, relating to residential development are contained within Pittwater DCP and the DCP No. 21 provides a description of the North Narrabeen locality and land within the North Narrabeen locality being identified on the map and it provides for the desired character. In the context of the North Narrabeen locality this is: Characterised by a valley and steeper slopes to the north, south and west and lands extending to Narrabeen Lagoon to the east. Much of the natural vegetation has been removed. Much of the tree canopy around the escarpment has been retained. The natural features of the locality result in a high risk of bushfire, landslip and flood. The desired future character will remain primarily a low density residential area characterised by one and two storey residences in a natural landscape setting interspersed with compatible land uses where appropriate. Dual occupancy development would generally be located on the valley floor subject to environmental and other constraints. Medium density housing will concentrate within adjoining neighbourhood retail centres and transport roads where appropriate. Future development in the locality will be consistent with public infrastructure capacity and environmental constraints. Future development will maintain a distinct height limit between the tree canopy and reflect the predominant scale and setback of existing developments, buildings will be designed to address the street, integrate with the public domain and be at a human scale, contemporary buildings will utilise façade modulation, et cetera. Building colours and materials will harmonise with the natural environment and not dominate it. Development on hillsides and in the vicinity of ridge tops will integrate with the natural landscape and topography. The indigenous tree canopy and vegetation will be retained and enhanced to assist development blending into the natural environment and to enhance wildlife corridors. The natural landscaping including rock outcrops, ruminant bushland and natural watercourses will be preserved.

12 The DCP also notes that in relation to hazards, natural environment and heritage the area is affected by various hazards and also includes vegetation areas and threatened species.

13 The other controls within the DCP that the Court was referred concern the subdivision of land and within this zone the outcomes: "are to achieve the desired future character of the locality and maintenance of the existing environment, an equitable preservation of views and vistas, the built form does not dominate the natural setting". The controls provide for an allotment of land within the 2(a) area to be 1200 sq m with a minimum width of 16 m.

14 Section B4.5 speaks about the protection of native wildlife, to protect native wildlife from impacts of domestic animals, all land mapped as flora and fauna conservation areas in categories 1 or 2. The subject site is within the wildlife corridor in category 1. The DCP refers to the control of domestic animals, et cetera and the need for plans of management.

15 The next section, B6.4, for off street parking, requires a minimum of two spaces.

16 Moving over to C1.19, incline passenger lifts and stairways. The outcome is that passenger lifts and stairways shall cause minimum visual and acoustic disturbance to the environment and neighbours. The DCP states incline passenger lifts and stairwells shall: (1) be designed and located so that they do not involve excessive excavation or the removal of natural rock or trees, (2) be erected as near as possible to the natural ground level and shall not involve the erection of high piers and overlooking adjoining dwellings and be painted blended for the natural environment, be set two metres from the side boundary located wholly on private land, have a privacy screen where there is a direct view within 4.5 m to a window or habitable room or another dwelling.

17 On steeply sloping existing lots incline passenger lifts are preferred to driveways, where the required driveway grade may be difficult to achieve and would have an adverse impact on the land-form, appearance, vegetation and species habitat. In such cases the proposal will be subject to assessment based on merits and should be no more than 1 m above the existing ground level. Incline passenger lifts will not be accepted in lieu of vehicle access for new subdivisions. The noise level shall not exceed 5 dBA above the background noise. Variation: Where an incline passenger lift is shared between lots a 2 m side boundary does not apply.

18 The other controls relate to land subdivision, access driveways and off street parking facilities as contained in C4.2 and the outcomes are to ensure safe and functional access for vehicles and pedestrians and ensure safe and convenient access and parking provided to all developments to meet the demands. For off street parking each individual lot created within the subdivision is to provide for off street parking facilities compatible with the proposed development for that lot.

19 The North Narrabeen locality is contained in D11 which is the character as viewed from a public place and it lists a number of controls. There are also controls for: scenic protection to achieve the desired future character; the bushland landscape of the area; building materials and colours; building envelopes to achieve the desired future character of the locality, the bulk and scale of the built form is minimised; equitable preservation of views; a reasonable level of privacy; and amenity and solar access is provided and maintained.

20 The draft LEP, proposes that the land be rezoned although the minimum allotment size is not altered. There was correspondence between the Department of Planning in terms of the minimum allotment size. The fact that the minimum allotment size is not changed does not mean that in the future there may not be proposals to increase the minimum allotment size for environmentally sensitive areas.

21 There is no question that the subject site is a steeply sloping vegetated site that is within an environmentally more sensitive area than the subdivision of lots on flatter, less vegetated sites. There is no question in terms of a threatened species in terms of s 78A(8) of the Environmental Planning and Assessment Act that there is a likelihood of significant impact in terms of in eight part test and the Court had evidence in regard to that matter.

22 As with many developments that come before this Court during the proceedings there was clarification of a number of issues and, indeed, at one point the proceedings were adjourned to allow the applicant to submit further additional information and in particular in terms of a Vegetation Management Plan. The need for more details had been an issue earlier in the proceedings as identified by the council and it was also a matter that Mr Wotherspoon commented on. The Court did allow the adjournment and the applicant is to pay part of the council's costs thrown away because it was at the final submissions stage in the proceedings and it was necessary to adjourn to allow the council the opportunity to comment on same and for further evidence to be elicited from Court appointed experts.

23 The Court was also provided with a number of judgments that it must have regard to. In summary the decision of The Chief Justice of New South Wales in the matter of Zhang v Canterbury City Council [2001] NSWCA 167 and the Court must give consideration to any DCP, in particular ones that have been through the due process and the Court's discretion is not unfettered.

24 I read from para 75 of Zhang v Canterbury City Council [2001] NSWCA 167: "The consent authority has a wide-ranging discretion. One of the matters required to be taken into account is the public interest but the discretion is not at large and is not unfettered and consideration or a fundamental element in or a focal point of the decision-making process is the DCP."

25 In that regard in consideration of the subject development application, which is one reason why I have outlined all the provisions to make it clear in my assessment that I have had regard to the relevant controls, it is clear also from the judgment that there is discretion in terms of the DCP in making decisions.

26 The statutory power in s 80 of the Act to determine a development application. Paragraph 71 of Zhang v Canterbury City Council [2001] NSWCA 167 states "by granting or refusing consent does not confer an unfettered discretion. It is the subject of the obligation to take into consideration the matters identified in 79(c)(1) and this obligation is of a similar character to that which has been found to be imposed by statutory obligation to have regard to identified matters".

27 The other judgments that the Court was referred to are Stocklands v Manly Council where the Chief Judge of this Court also considered the weight to be given to a policy that had been through the due process similar to a DCP. This judgment also provides further guidance for the Court in the assessment of applications.

28 The Court was referred to a number of planning principles and in particular the planning principle contained in Parrott v Kiama Municipal Council, a decision of Senior Commissioner Roseth, concerning when should a subdivision application include information on the buildings to be built on the resulting allotments. "It is normal practice in Australia to subdivide land without constraints on the buildings that can later be built. While this practice is appropriate in most cases it is not always so. I have adopted the planning principle that a subdivision application should provide constraints on future buildings when the proposed allotments are smaller than usual or environmentally sensitive or where significant impacts on neighbours is likely and needs careful design to minimise them."

29 I will say at this point in my judgment and having regard to the principle outlined in Parrott v Kiama I consider that the proposed development is one that is worthy of approval. However, there is a need for an envelope to be provided as opposed to a building footprint on the subject sites. This is in terms of solar access and it is consistent with the provisions and requirements of council's DCP No. 21. I will provide further details of that later.

30 The building footprints that have been provided on the plans indicate a footprint area of some 190 sq m and some 185 sq m for the respective lots, the requirement of council's DCP is for a building footprint of 175 sq m. In that regard I am satisfied that dwelling houses can be erected on the subject sites. The subject sites are extremely steep and clearly when one reads the geotechnical advice that was provided with the development application of Jack Hodgson Consultants Risk Analysis and Management for the proposed subdivision of the subject land it is clear that there are a number of criteria to have regard to in the recommendations.

31 The consultant also attaches appropriate guidelines in terms of hillside construction for developments and examples of good hillside practice are attached. He also notes in terms of geotechnical hazards, in terms of adjoining sites, in terms of land below the site, in terms of land above the site "no geotechnical hazards likely to adversely affect the subject site were observed and no risk analysis is required in that regard." He does, however, say that the proposed development is considered to be suitable for the site provided the recommendations in para 10 are carried out and there are a number of risk management provisions contained within that section which go to the type of structure and excavation and fill and foundations, stormwater drainage, inspection, maintenance.

32 In terms of the geotechnical matters he also provided further advice when the footprints were altered in response to the adjoining neighbour's concern, Ms Warburton's. The geotechnical engineer states: "the movement of the building envelopes and the removal of some additional trees have not changed any of the statements made in our report or altered the risk assessments" and he goes on to say that "we refer to the letter from Robina Warburton and are of the opinion that the majority of her comments apply to the future houses and their effect on the site and the adjoining properties. The effect of the future proposed houses has not been addressed because the type of house and the structures to be used are not known at this time. These issues will be addressed in the individual risk management reports for the houses when the DA applications for them are made.

33 It was not only a concern of Ms Warburton but it was also a concern of the neighbour at the rear of the property who has a part common boundary with the subject site, Mr Scott Atkinson. He had concerns about the geotechnical stability and in particular excavation and any impact on the toe of the hillside.

34 I am satisfied that with the council's conditions and with the geotechnical preliminary reports, that have been provided that this is an issue that would not warrant refusal of the application, and clearly any future construction will have to be in accordance with best practice engineering and further geotechnical reports are required in this regard.

35 The issue of the Vegetation Management Plan, as I said, was something that was addressed by the submission of a plan from Dr Ambrose. The plan of Dr Ambrose is one that would have to be implemented in terms of a subdivision for the subject land. This sets out a comprehensive re-vegetation for the subject site in terms of providing habitat for the native fauna and its contribution to the habitat corridor provided in council's DCP.

36 Mr Wotherspoon considers that even though the subject site is in the highest category of wildlife corridor be considers that the vegetation is somewhat degraded, and he said, there was an opportunity to enhance the value of the corridor and that the proposed development did not sever the land in the corridor even though it would be constricted. 37 I also take Ms Irish's point who submitted on behalf of the council that I should not assess the application as if the land would continue to degrade and that the proposal presented the only opportunity for its enhancement or further contribution to the value of the habitat corridor. I have not considered it in that context. I have considered the total development and its appropriateness having regard to a holistic reading of council's controls and I am satisfied that the proposed development is one that is satisfactory and will allow for the wildlife corridor to continue. I also acknowledge that other development of the subject land could also lead to an enhancement of the corridor lands. I note that Mr Wotherspoon said that a significant part of the vegetation would be removed but at the same time with the provisions of the Vegetation Management Plan to ensure the connectivity of canopies, et cetera, is maintained and that distances as specified are no greater than in the management plan suggested by Mr Wotherspoon, then I am satisfied that the proposed development is satisfactory. Clearly, the subject area is one where houses sit within a vegetated setting and this is clear from the other dwellings that are situated on this steeply sloping land.

38 Dr Ambrose in his Vegetation Management Plan states: "in relation to the impacts on the wildlife corridor values the proposed new dwellings and associated infrastructures are unlikely to fragment the wildlife corridor to the extent that it would hinder the movements of native fauna and flora provided that as much of the native bushland as possible is retained around the dwellings and such that there is an east/west bushland corridor through the subject site and that the gaps between vegetated areas are not greater than 50 m enabling gliders to move between trees."

39 Council's controls clearly require details of bushland regeneration or a Vegetation Management Plan and that has now been provided and satisfies those requirements. As I said, it is not uncommon for matters to be amended through the course of proceedings in the Court or additional information to come to hand to allow a thorough assessment of development applications and in that regard I have had the benefit of experts and the additional information as opposed to the original development application which the council had before it.

40 There are still issues with respect to the car parking. The car parking provides for one less space than council's controls. However, in terms of the circumstances of the case and having regard to the discretionary nature of the provisions of DCP's, I am satisfied that the proposed development with three car parking spaces will not have an adverse impact. Some of the residents are concerned about parking on the street. It is clear that there is adequate parking on the street in Nareen Parade and the provision of the three car parking spaces is by way of a driveway that will be constructed in such a way that it will not be a visual scar on the steep hillside.

41 There was discussion about the vegetation in terms of the trees that should be removed and in order to enhance the performance of the subject site in terms of a wildlife corridor it was considered that some of the exotic species should be removed and replaced with suitable native plantings.

42 It was also noted on the site that some of the trees, especially in the upper portion of the site, were unhealthy, to quote Mr Wotherspoon, in his report "the under storey groundcover, as he also noted, had the intrusion of many weeds." The Vegetation Management Plan is to ensure that the site as an outcome is managed appropriately to make a positive contribution in terms of the environment.

43 The Court was also referred to two decisions of other commissioners of this Court which I have looked at and they are the ones of Formstone v Pittwater Council, Commissioner Nott, and in terms of this judgment I distinguish the subject development application in both its context and in terms of the steep access drive that was proposed in that particular development and the parking.

44 In terms of Commissioner Bly's judgment in Weston v Pittwater Council once again it was the shape and the failure to ensure wildlife corridors and the width of the driveway for three lots which were the primary reasons as to why that application failed. I am satisfied that this particular application is distinguishable in that regard.

45 Furthermore, in terms of the council's DCP and its desired future character I am satisfied the proposed development with two dwelling houses set in a vegetated bushland setting consistent with the provisions of the Vegetation Management Plan and the Landscape Plan that the Court now has before it will not be antipathetic in terms of council's future desired character. The addition of an additional dwelling in this location will not adversely impact on the environment and I am satisfied, subject to a maximum RL or envelope being defined for each proposed dwelling that the amenity of other residences adjoining the subject site will not be impacted by the proposed development.

46 The Court had the benefit of looking at the existing character of the area and clearly the future desired character is something that I must also give central consideration to and I do not consider it to be inconsistent. Many allotments within the view shed of the road where this subject site sits have been subdivided dual occupancies erected. The proposal is for a less intrusive development subject site as opposed to sites further to the west of the subject site. The two individual allotments are not capable in a physical and environmental capacity, of dual occupancy development and council's controls would not allow dual occupancy. However, the size of the sites in the proposed subdivision would allow for a dwelling house to be erected on those sites that fit in with both the natural and the built environment and are harmonious in terms of council's controls.

47 The controls contain a great deal of detail and I have given serious consideration to the controls. However, in a numeric sense if a development application does not comply with a DCP and in particular where objectives are enunciated the Court has the benefit of assessing proposals it against the qualitative criteria as well as the numeric requirements and I am satisfied the proposed development is one that is not contrary or inconsistent to those controls.

48 I have assess the development application on its own merits and I am satisfied that the DCP guidelines not numerically satisfied, that is, 1200 sq m site and the car parking would not warrant refusal of the application. I am satisfied in the circumstances of this case that the size of the subject allotments is satisfactory and will not adversely impact on both the natural and built environment.

49 The construction of any dwelling houses clearly will have to have regard to the geotechnical assessments that have been done or preliminary assessments that have been done in terms of good hillside construction and in that regard the consultant cited the relevant Australian Standard.

50 The Court has also had regard to the requirements as set out in BGP Properties Pty Limited v Lake Macquarie City Council that refers to principles such as precautionary principle and ecologically sustainable development and at para 114 his Honour, McClellan CJ, says: "Consideration of these principles does not preclude a decision to approve an application in any cases where the overall benefits of the project outweigh the likely environmental harm. However, care needs to be taken to determine whether appropriate and adequate measures have been incorporated into such a project to confine any likely harm to the environment and in that regard I am satisfied that the conditions as agreed to between the applicant and the council will ensure that the development proceeds in a satisfactory manner."

51 The Court notes that there are a number of conditions requiring the subdivision a restrictive covenant or a covenant in terms of 88B of the Conveyancing Act on the title and such a covenant is to ensure that future buyers of the subject land would be aware of their obligations and requirements as set out in the conditions of consent. Such an instrument is appropriate if it is for a planning purpose, and clearly this is the case here to protect the environment. In terms Fortunate Investments v North Sydney Council, the previous Chief Judge of this Court, her Honour, Pearlman CJ, in that case determined that it is appropriate for such an instrument where there is a proper planning purpose and purchasers should be aware to ensure conditions are not forgotten and of future purchasers are aware of and the future management of the subject land.

52 It is noted that prior to the construction certificate that geotechnical reports need to be submitted for development. It is noted also that structural engineering details are required for the car park area and that an 88B instrument in terms of the Vegetation Management Plan is required and in terms of the adjoining neighbour it is noted that the location of the proposal parking is to be moved 1 metre in terms of the pepper tree.

53 As I stated, the conditions are as generally agreed and referred to the Court in written form. However, I do not have an electronic version of those conditions so the respondent should provide this to the Court.

54 The Court is prepared to issue orders in chambers once a building envelope and a maximum relative level has been established for each dwelling on the subject site that must not adversely impact on the solar access of the property at No 24. And in this regard council's controls in terms of solar access should be considered and the applicant must provide a building envelope as opposed to a footprint or platform. The controls clearly require an envelope and in terms of certainty in the planning process an envelope with maximum relative levels for the height of the dwellings to ensure that solar access is maintained is appropriate in this case. It is also appropriate for the reason to ensure that any future dwellings blend or are harmonious in terms of the natural environment.

55 Therefore, on the basis of my assessment and having regard to the council's planning framework and regime and the expert evidence to the Court the application should be approved subject to the above requirements. The Court had the benefit of a great deal more expert evidence and a greater assessment than the Court appointed expert could provide in the first instance as such note that the Court's assessment had the benefit of this and a more comprehensive than the assessment that was undertaken by the Court appointed expert.

56 The formal orders of the Court will be issued on the receipt of building envelopes showing maximum RL's shadow diagrams, and an electronic version of the conditions.

57 Subject to the above the formal orders of the Court on the basis of my assessment will be:- 1 The appeal for the property known as No. 26 Nareen Parade, North Narrabeen be upheld. 2 The development application submitted to Pittwater Council and as amended for a two lot subdivision of the above property will be approved subject to the conditions contained in Annexure A. 3. The exhibits except for 12, 13, 14, B, H, K, J and N will also be returned. 58 With respect to the costs the Chief Judge pursuant to s 69(8) of the Land and Environment Court Act concurs and the Court orders the applicant to pay the respondent's costs in the sum of $3,636.

              J S Murrell
              Commissioner of the Court
              ljr

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.